U.S. v. Harris, 55 M.J. 433

Core Criminal Law Subjects: Evidence: Authentication

1. the "silent witness" theory allows authentication of photographs by demonstrating the reliability of the process that created them, without the need of a human witness to the events shown by the film
2. the "silent witness" theory of authentication allows photographs to substantively speak for themselves after being authenticated by evidence that supports the reliability of the process or system that produced the photographs
3. in light of the line of Federal cases demonstrating, over a 25 year span, the evidentiary reliability of the "silent witness" theory of authentication, the Court of Appeals for the Armed Forces adopts it for military courts as well
4. the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, and authentication may be provided by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Mil.R.Evid. 901(a) and (b)(9)
5. the record of trial established a reasonable foundation for authenticating photographs taken by a bank automated camera where: (1) the system was reliable; (2) the system was in working order when the photo in issue was taken; and (3) the film was handled and safeguarded properly from the time it was removed from the camera until the time of trial
6. the reliability of a camera system for purposes of authenticating a photo can, but need not, be shown by an expert witness; alternatively, witnesses can establish reliability without describing the technical mechanics of the operation of the camera by, for example, showing a time/date stamp on the film to demonstrate that the camera was in working order and by showing that the tapes or photographs have not been altered and have not been subject to tampering
7. operability of a bank surveillance camera system for purposes of authenticating the resultant photo was shown by the level of detail in the evidence about the process of video monitoring, the notation of the time and date on the photo when taken, and storage of the tapes; evidence of the bank’s procedures and the date and time on the film is enough to support a finding that the camera operated on the day in question, absent sufficient evidence to rebut this contention
8. evidence of the process used by a bank accounted for the integrity and chain of custody of videotapes, thereby supporting the foundation for authentication, where: (1) the tape was removed from the video recorder by a bank employee consistent with the bank’s practices; (2) removal of the tape was correctly noted in the videotape log maintained by the bank; (3) the tape was kept in a storage room until sent to the fraud investigator; and (4) the bank fraud investigator maintained the tape until he gave it to law enforcement
9. to establish chain of custody, the prosecution is not required to exclude every possibility of tampering; the government need only show by direct or circumstantial evidence a "reasonable probability" that the evidence is authentic; mere claims that photographs may be altered should not bar their admission, and gaps in the chain of custody go to the weight of the evidence rather than its admissibility

Core Criminal Law Subjects: Evidence: Hearsay › Business entries

1. a writing will be admissible as a business entry provided: (1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity; this foundation may be laid through the testimony of the custodian of the records or other qualified witness, but the record will not be admissible if the source of information, or the method or circumstances of preparation indicate a lack of trustworthiness
2. a foundational witness need only be generally familiar with the process of making or transmitting a writing in order to be “qualified” under Mil.R.Evid. 803(6)
3. the testimony of a bank fraud examiner established him as qualified under Mil.R.Evid. 803(6) to lay the foundation to qualify a bank videotape logbook system as a business entry where: (1) he was familiar with the videotape and logbook system; (2) he testified that logbook entries were made when a tape was changed; (3) he testified that entries were initialed when made and were made by people with personal knowledge; and (4) his testimony established that the logbook was routinely used and was kept in the course of business
4. the testimony of a bank teller established her as qualified under Mil.R.Evid. 803(6) to lay the foundation to qualify a bank videotape logbook system as a business entry where: (1) she testified that she made entries in the logbook herself; (2) she discussed how entries were made when the tapes were changed and that this was regular procedure; and, (3) she identified the initials in the logbook from the day in question as those of another teller

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when the Court of Appeals for the Armed Forces reviews a decision of a Court of Criminal Appeals on a military judge’s ruling, it typically has pierced through that intermediate level and has examined the military judge’s ruling, and then decided whether the Court of Criminal Appeals was correct in its examination of the military judge’s ruling

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to admit or exclude evidence is reviewed for abuse of discretion